ABSTRACT
According to the Uniform Civil Code (UCC), all religious communities in India would be subject to one legislation that would govern issues including marriage, divorce, inheritance, and adoption. The code is governed by Article 44 of the Constitution, which states that the state must work to ensure that its citizens have access to a Uniform Civil Code across all of India.
Article 44 of the Indian Constitution’s Directive Principles was intended to combat prejudice against weaker groups and promote harmony among the nation’s various cultural groupings. While drafting the Constitution, Dr. B. R. Ambedkar stated that while a UCC is desirable, it should remain voluntary for the time being. As a result, Article 35 of the draught Constitution was added as Article 44 of the Directive Principles of the State Policy in Part IV of the Constitution of India. It was included in the Constitution as a provision that would be fulfilled whenever the country was ready to embrace it and the UCC could gain social support.
KEYWORDS
Constitution, directive principles, discrimination, civil law, secularism, personal law
INTRODUCTION
The UCC first appeared in a British government paper from 1835 that stressed the requirement for consistency in the coding of Indian law with regard to crimes, evidence, and contracts and particularly suggested that personal laws of Hindus and Muslims not be included in such codification.Thereafter, in 1950 the Constitution of India commenced, wherein personal laws were not considered as laws under Article 13. Narasu Appa Mali[1](The State Of Bombay vs Narasu Appa Mali on 24 July, 1952 n.d.) the case is a 1952 judgment, wherein J. Chagla and J. Gajendragadkar observed that personal laws are not covered by regulation by the State, not being part of “law” under Article 13 of the Constitution. This case was a stepping stone, in legitimizing the existence of rudimentary mentality in the society and to further remove it by the enforcement of Uniform Civil Code.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL LAWS:
Although India’s criminal laws are universal and apply to everyone equally regardless of their religious beliefs, the civil laws are influenced by faith. Even when influenced by religious sources, personal laws that apply in civil cases have always been applied in conformity with constitutional requirements.
RESEARCH METHODOLOGY
This paper is descriptive in nature and the research is based upon thorough study of case laws and the relevant provisions of the Constitution of India. The primary sources used in the research are case laws which helped in the development of UCC as well as journals and websites.
REVIEW OF LITERATURE
The Republic is governed by the Indian Constitution, which was adopted by the Constituent Assembly on November 26, 1949, and went into effect on January 26, 1950. According to Kelson, the term “grundnorm” refers to the basic rule, regulation, or law that forms the basis of all legal frameworks. This might be seen as the basis for the positive law’s legitimacy in that legal system.The most important source of law in India is the Constitution. Therefore, the Constitution has to be followed at all times with regard to every situation. When the Romans developed ‘JUS CIVILI’(Marmor 2021)[2] the concept of having a uniform code for the society came into effect. Every person was subjected to code and the ethics of the code were applicable among all. Therefore, it ensured equality amongst equals.
Article 44 of the Constitution says, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” The provision is not directly enforceable as it falls under Part IV of the Constitution which provided for the DPSP. The DPSP are not directly enforceable either, but they have been in practice made enforceable by way of judicial activism. By virtue of the fundamental rights, the DPSP find an important place in reality. Therefore, UCC finds an important place in today’s reality, where intolerance with regard to religion, caste, sex, etc. is increasing every day. It can be enforced with the help of fundamental rights and judicial activism. It has been an unfortunate understanding amongst people that the enforcement of the UCC will favor and promote the majority. On the other hand, it only seeks to protect the vulnerabilities of the society at large.
CONSEQUENCES OF UCC
According to Ambedkar, the UCC seeks to protect marginalized groups like women and religious minorities while also promoting togetherness and a sense of national fervor. The code’s goal is to make laws that are currently complicated due to religious differences, such as the Hindu code bill, Sharia law, and other laws, simple once it is in place. The code will simplify and harmonize the convoluted rules governing nuptials, succession, inheritance, and adoption. The same civil law will thereafter be applicable to all citizens, regardless of their level of religious affiliation.
The government should switch to a UCC to bring uniformity, the courts have regularly ruled in their judgements.The Shah Bano(Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985 n.d.)[3] The case verdict from 1985 of Shah Bano is well-known for the regulation of all personal laws under the ambit of Art14.
Sarla Mudgal(Smt. Sarla Mudgal, President, vs Union Of India & Ors on 10 May, 1995 n.d.)[4] Case (1995), which dealt with the subject of bigamy and a disagreement between the personal laws already in place regarding marriage, was another case.
The case of Shayaro Bano v. UOI is a 2017 judgement, wherein the concurring opinion of J. Nariman was inclined towards the fact that the personal laws are laws for the purpose of Art.13 and thus can be regulated by the state. The Complainant was forced to undergo many abortions by her husband, who himself refused to undergo tubectomy (under the belief that such surgery was forbidden by Allah). It established the importance of having similar laws applicable upon all so that the atrocities committed by one sector of society to another does not occur. The Centre has questioned whether the constitutional protection for religious practices should include those that violate fundamental rights by saying that acts like triple talaq and polygamy have a negative influence on a woman’s right to a life of dignity.
INFERENCES FROM UCC
Security for Vulnerable Groups in Society: The UCC aims to uphold Ambedkar’s vision of protecting vulnerable groups in society, like women and religious minorities, while also igniting nationalistic fervor via unity.
Ease of Laws: The code will simplify and harmonize all of the complex regulations governing marriage, inheritance, succession, and adoption. The same civil law will subsequently apply to all citizens, regardless of their affiliation with a particular religion.
Following the Secularist Ideal:As stated in the Preamble, a secular republic requires a common law for all citizens as opposed to discriminating standards based on religious traditions.
Gender Justice: All personal laws will be abolished if a UCC is implemented. It will eliminate gender discrimination in current laws.
COUNTRIES WITH UCC
Industrialized countries like the United States, Canada, Australia, the United Kingdom, and Russia, among others, have adopted the Uniform Civil Code as a progressive piece of legislation to better their societies, cultures, and religions and put an end to discrimination against different racial and ethnic groups. Only with a common civil code will these countries be able to accomplish their larger goals.
USA
The secular law in the USA is applied equally and consistently to all of its residents. Due to the English common law in the USA, everyone is treated equally and prejudice against minorities is eliminated. Even visitors from other nations must adhere to local common law. Due to its universal civil code, the USA has succeeded in achieving its objectives and prospering economically, socially, and religiously.
Uniform Civil Code in Goa
Goa is the only state in India with a unified civil code because the Special Marriage Act of 1954 is in force throughout the entire state. This was created by the Portuguese in 1870 as Goa family law, but it was maintained when Goa was emancipated and changed to the Special Marriage Act in 1954. This marriage statute recognises a civil partnership between individuals of different sexes regardless of the couple’s religious beliefs. This statute forces Indians to marry outside the customs of their personal law.
Reason why India needs uniform civil code:
- It encourages secularism- India(UCC and Personal Laws n.d.)[5] is the most diverse country in terms of culture and religion. Sometimes, this diversity causes differences amongst the members of the society. In recent times it has been observed that there is an increment in the intolerance level between people belonging to dissimilar religious beliefs. It can be resorted to by adopting UCC. The criticism of the advent of UCC comes from presuming that it will bring the laws of the religion of the more populated members of a community all over India. But this inference is wrong as implementation of UCC means to bring a common law applicable to everyone in force.
- The Supreme Court of India in Seema v. Ashwani Kumar(Smt. Seema vs Ashwani Kumar on 14 February, 2006 n.d.)[6] Regardless of faith, all Indian states must implement laws for the mandatory registration of weddings within a certain time frame. This reform has made strides in preventing child marriages, bigamy and polygamy, enabling women’s rights to support themselves, inherit property, and live in their own homes, discouraging men from deserting their wives, and preventing human trafficking in the name of marriage. Due to the effects of weddings not being registered, there are many spouses in India who have been abandoned by non-resident Indians who regularly live overseas. However, the same is continuously being undercut in its implementation. It grants women more rights- In the instance of Shayra Bano, a young woman married Rizwan in Allahabad. Due to her husband’s refusal to get a tubectomy because he believed that doing so would violate Islamic law and be banned by Allah, she was compelled to have numerous abortions. Rizwan then asked her father to pick her up and take her home. Shayra Bano received Triple Talak from Rizwan via letter. Following that, Shayra Bano and four other Triple Talak victims made their way to the Supreme Court. They took on the evil Triple Talak. The Honourable Supreme Court declared the Triple Talak practice illegal in August 2017. Five petitions seeking the annulment of Triple Talak were heard by the five-judge panel. By a 3:2 majority, the Supreme Court ruled that polygamy, triple talak, and nikah halala are all against Muslim personal law and that they violate Articles 14, 15, and 21 of the Indian Constitution, which protect fundamental rights.
- Fair Treatment for All. If there is a single law that applies to everyone, prohibiting discrimination, then everyone will be treated equally. Muslim men are allowed to wed more than once, and as a result, people are changing their religion, showing that women are mistreated and that their fundamental rights are violated. If there is only one law that governs marriage, property, and divorce, then everyone will be treated properly. If everyone is subject to the same legislation, there won’t be any discrimination because everyone will be treated equally.
- There wouldn’t be any discrimination-
India has a vast number of communities based upon different caste, tribe, language and culture. Despite 76 years of independence there is always a tendency to discriminate against an individual based upon his/her caste, tribe, language, sex, religion etc. However, discrimination can come to an end by the implementation of UCC.
- Personal laws contain flaws-
Indian personal laws are based upon religion. Until the 2005 Amendment of the Hindu Succession Act 1956, Hindu daughters had no right in Hindu Undivided Family property as they were not regarded as coparceners. This amendment for the first-time recognized females as equal as males in Hindu community. Similarly, the Triple Talaq in Islam was violative of females right to equality. Personal laws have many loopholes that have created a huge number of ambiguities which are yet to be resolved by the legislature.
One such example of ambiguity is the deletion of S.4 from the HSA,1956 which provided for exclusion of agricultural property from the applicability of HAS,1956
- Destroy the voting database based on religion-
Politicians exploit people’s opinions and corrupt their minds thereby causing intolerance amongst people of different religious groups. Such intolerance motivates people to vote someone of their own religion and it not only disturbs the tranquility of a peaceful society but also promotes competition of bad character amongst the politicians
- It will unify India.- The intolerance among the different communities has increased due to the presence of difference created by the personal laws. The vote bank politics played by the Indian Politicians has influenced the vulnerable part of the society to believe the majority-minority cannot be interfered with. When UCC will come into operation, everyone will be treated with the same laws and there will be absence of a majority-minority divide. Thus, prosperity and harmony will thereby increase which will culminate into unification of the Indian society.
UCC v. RELIGION
Because Articles 25 and 26 of the Indian Constitution reserve basic rights to religion, the likelihood of UCC does not demonstrate overlap with the right to religion. In contrast to Article 44, which deals with UCC, these rights can be upheld in a court of law. There are separate personal laws that have been codified for Hindus, Muslims, Christians, and Parsis in India. There isn’t a single family law that governs all Indians and is recognised by all the various religious groups that cohabit there. However, the bulk of them concur that UCC would undoubtedly be advantageous and greatly deepen and consolidate Indian nationhood. Regarding the best time and method for implementation, different people have different opinions.
Instead of using it as an emotive subject to further their own political agendas, political and intellectual leaders should try to establish a consensus. The problem is simply how to treat every human being with respect, which is something that personal laws have so far failed to address. It is not about preserving national unity or even about safeguarding minorities.
UCC cannot infringe on a person’s right to practice their religion because its goal is to provide uniform laws governing marriage, lawful separation, succession, and other topics, not to offer a uniform way to practice religion.
CONCLUSION AND SUGGESTIONS
Some groups believe that the Uniform Civil Code should be banned because it violates their religious beliefs. However, modernizing their religious legislation will promote equality and make them wealthy both traditionally and socially.
To make the different cultures, traditions, and religions of our society more progressive, prejudice based on religion, caste, and sex must be eliminated. The modern approach to treating everyone equally in every way is to use the Uniform Civil Code.
With less work on the courts thanks to this code, justice will be served quickly to all parties.
The only thing that needs to be made clear to the public is that the Uniform Civil Code was created to end discrimination against anyone, regardless of their religion, and that no one should suffer because of their faith.
The UCC embraces secularism. UCC is both praised and criticized, but in the current situation, its implementation is necessary to put an end to the nation’s internal conflict and promote both traditional and economic growth.
Each and every person of India is treated equally before the law and in court, as stated in Article 14 of the constitution. However, personal laws based on a specific religion exist in India. For example, a Muslim can marry many times and he will not be prosecuted but if there is any Hindu, Christian or Sikh then he would be tried by the court which is against the statement of Article 14 of Indian constitution. This is not equality in real means. If we desire equality, then the laws governing marriage, adoption, divorce, inheritance, family, and property ownership, among other things, should be the same. The precise meaning of equality will then be established. In certain ways, personal laws violate Article 14 of the Indian Constitution. The misconception of applying the majority rule will come to an end if UCC becomes enforceable. It will also become an end to intolerance with regard to religion, which has been a major factor of vote bank politics in India. Therefore, in my opinion the Uniform Civil Code must become enforceable with some amount of protection to the vulnerable groups of the society. There should also be promotion along with protection of the vulnerable groups, so that their interests and well-being does not get hampered. To conclude, I would like to add that the majority-minority conflict will also come to an end after UCC is enforced, which will initiate India’s development to an integrated opinion with regard to law.
How to implement UCC?
[1] 1) The government must make gradual changes in order to retain the consistency of the laws. For example, the daughters were given the status of Coparceners under the Hindu Succession via amendment in 2005. This law made Hindu male’s status equal to that of the female with regard to Joint family property. Such laws should be made applicable among all irrespective of religion, caste etc.
2) The word uniformity says all institutions must be controlled by uniform regulations. This is similar to putting everyone in a straight-jacket formula of being subjected to the same norms, which will culminate into the termination of discrimination to a much larger extent.
3) This will update and personalize all personal laws. In order to prevent manipulation by others, the government should take steps to increase public understanding of the code and explain its benefits. For example, the practice of triple talak was held to be illegal and unconstitutional by the Apex Court.
4) This code must maintain harmony between different religions, fundamental rights, and not offend anyone’s religious sensibilities. The fundamental right of practicing one’s religion must remain in its place but there can be regulations brought by the state to control the civil laws with a common objective of unifying and integrating one another.
5) This code ought to be impartial and consistent, applying equally to all communities. The vulnerable groups must be given special status for certain period of time in order to protect their interests, thereafter, they should also be subjected to the same code which is applicable to the non-vulnerable society. This will not only help in their development but will also unite them with the rest of the society.
Therefore, UCC is the need of the hour.
RIKHIL
CAMPUS LAW CENTRE
[1] “The State Of Bombay vs Narasu Appa Mali on 24 July, 1952.” https://indiankanoon.org/doc/54613/ (April 12, 2023).
[2] Marmor, Andrei. 2021. “The Pure Theory of Law.” In The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta. Metaphysics Research Lab, Stanford University. https://plato.stanford.edu/archives/fall2021/entries/lawphil-theory/ (April 12, 2023).
[3] “Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985.” https://indiankanoon.org/doc/823221/ (April 12, 2023).
[4] (Smt. Sarla Mudgal, President, … vs Union Of India & Ors on 10 May, 1995 n.d.)
[5] “UCC and Personal Laws.” https://legalserviceindia.com/legal/article-2835-ucc-and-personal-laws.html (April 12, 2023).
[6] “Smt. Seema vs Ashwani Kumar on 14 February, 2006.” https://indiankanoon.org/doc/1037437/ (April 12, 2023)